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Brown v. State

United States District Court, S.D. Florida

April 22, 2019

MICHAEL A. BROWN Petitioner,
v.
STATE OF FLORIDA, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          REID MAGISTRATE JUDGE.

         I. Introduction

         This matter is before the Court upon a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by the pro se petitioner, Michael A. Brown, a convicted state felon, challenging the constitutionality of his conviction and sentences for robbery with a firearm and, in the course of the robbery, possession of a firearm, a first-degree felony, in violation of Fla. Stat. §§ 812.13(1), (2) and 775.087(2), the result of a jury verdict in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County No. 01-018623CF10A.[1]

         This Cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B), S.D. Fla. Admin. Order 2019-2, and the Rules 8(b) and 10 Governing Section 2254 Cases in the United States District Courts.

         The Court reviewed the petition along with the exhibits (DE#1) and the memorandum of law (DE#3) together with the online state court criminal docket[2]and certain documents contained therein; and the online appellate dockets of the Fourth District Court of Appeals (“Fourth DCA”), along with the respective opinions, for case numbers 4D02-3518 (DE#7-25:1-5), 4D05-3732 (DE#7-26:1-2), 4D05-3733 (DE#7-27:1-3), 4D11-1038 (DE#7-28:1-2), 4D17-2655 (DE#7-29:1-2), 4D17-3183 (DE#7-30:1-3), and 4D17-3771 (DE#7-31:1-4), hereinafter referred to as “Appellate Docket .” The undersigned did not issue an order to show cause to the State because it is evident Petitioner is not entitled to habeas relief since the instant petition is untimely.

         II. Procedural History

         Nearly seventeen years ago, a jury convicted Petitioner of robbery with a firearm. (DE#7-3:1). Counsel filed a motion for new trial which was denied. (DE#7-5:1, 2). The court sentenced Petitioner to life in prison as a prison releasee reoffender with credit for time served. (DE#7-6).[3]

         Petitioner appealed to the Fourth DCA in No. 4D02-3518. (DE#7-7:1-3). On October 22, 2003, the appellate court affirmed Petitioner's conviction and sentence. Brown v. State of Florida, 856 So.2d 1116 (Fla. 4th DCA 2003).

         Petitioner did not seek discretionary review from the Florida Supreme Court. The time for doing so expired thirty (30) days after the appellate court's affirmance of Petitioner's conviction, on November 21, 2003.[4] Therefore, his conviction became final on November 21, 2003.

         Since Petitioner did not seek discretionary review from the Florida Supreme Court, he is not entitled to an additional ninety (90) days to seek a writ of certiorari in the Supreme Court of the United States. Gonzalez v. Thaler, 565 U.S. 134 (2012).[5] See also Sup. Ct. R. 13. However, assuming without deciding that Petitioner is entitled to appeal to the Supreme Court of the United States, then, alternatively, his conviction would become final 90 days after the Fourth DCA affirmed his conviction, on January 20, 2004, when the time to appeal to the Supreme Court of the United States expired.

         Petitioner had only one year to file a federal habeas petition pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”) -- no later than January 20, 2005, absent any tolling motions. For purposes of this Report, the undersigned utilizes the later date because, even when giving Petitioner this additional time, this federal petition remains time-barred.

         III. Discussion-Timeliness

         A. General Principles of Timeliness

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding. See Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998) (per curiam). The AEDPA imposed for the first time a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). Specifically, the AEDPA provides that the limitations period shall run from the latest of -

A. the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
B. the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such action;
C. the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
D. the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

See 28 U.S.C. § 2244(d)(1).

         As noted, the Petitioner's conviction became final, at the latest, on January 20, 2004. This § 2254 motion, dated October 15, 2018, filed more than 14 years after his conviction became final, asserts the following claims:

1. Ineffective assistance of counsel for “seven omissions”:
a. Counsel failed to investigate and present evidence of the police “manufactured” photo lineup, the result of a “scheme” designed to identify him as the perpetrator of the armed robbery. A proper investigation would have supported a motion for dismissal of the charges because the ...

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